Frasard v. State
322 Ga. App. 468
Ga. Ct. App.2013Background
- On April 4, 2012 a DeKalb County officer observed Michael Frasard driving well above the posted limit on Peachtree Road, estimated speed by training, then obtained a laser reading of 54 mph in a 35 mph zone. Frasard was cited and indicted on two speeding counts (specific speed and "in excess of" the limit). A jury convicted on both counts; sentence: 12 months probation and $500 fine plus costs.
- Officer testified as to location (DeKalb County), visual speed estimation, laser reading, device certification, daily device tests, and county permit to use devices. Frasard testified and contested distance, visibility, and device compliance.
- Frasard raised multiple pro se grounds on appeal: insufficiency of evidence, failure to prove signage for speed limits and speed-detection devices, device authorization/certification, and citation defects for missing "two-lane" designation.
- Appellate court reviewed evidence under Jackson v. Virginia standard and found officer testimony and laser reading sufficient to support conviction and venue proof in DeKalb County.
- Court rejected challenges to signage (OCGA §40-14-6), device visibility and certification (OCGA §§40-14-4, 40-14-7, 40-14-17) based on officer testimony, presumption that public officers perform duties, and prior Georgia decisions allowing circumstantial proof of device approval.
- Although convictions were upheld on the merits, the court vacated and remanded for resentencing because the two speeding counts should have been merged (single course of conduct; no legislative intent for multiple punishments).
Issues
| Issue | Frasard's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of speed evidence | Officer’s estimate and laser reading insufficient | Officer’s training estimate and laser reading prove speeding | Conviction upheld — officer estimate and laser reading sufficient |
| Venue (DeKalb County) | Not proved county line location | Citation and officer testimony (and Frasard’s own testimony) establish venue | Venue established; conviction sustained |
| Signage for speed limit and detection devices | No proof of county-line signs or device-warning signs as required | Officer physically verified posted limits; incomplete signage nonfatal under precedent | Rejected — testimony admissible; lack of statutory signage did not require exclusion |
| Device certification, visibility, and approved-model proof | State failed to produce DPS approved-model list, FCC license, and show 500-foot visibility | Officer testified device was certified and visible ~844–950 ft; county permit; daily logs; presumption that officials performed duties | Rejected — circumstantial testimony and presumption suffice; factual conflicts for jury; issue waived where not objected appropriately |
| Citation defect (no two-lane box checked) | Citation void for not specifying two-lane road per OCGA §40-6-187 | Citation and indictment provided adequate notice; leaving box blank indicated road had more than two lanes | Rejected — claim waived by failure to demur; citation sufficient |
| Multiple convictions/sentencing (merger) | Not raised below | Counts arise from same conduct; multiple punishments not intended | Held for defendant — counts must merge; vacate and remand for resentencing |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for reviewing sufficiency of evidence)
- Reese v. State, 270 Ga. App. 522 (GeorgiaApp. standard for viewing evidence in traffic convictions)
- In the Interest of J. D. S., 273 Ga. App. 576 (officer estimate of speed supports conviction)
- Jones v. State, 258 Ga. App. 337 (speed exceeding limit is the substantive offense; precise rate affects punishment)
- Brooker v. State, 206 Ga. App. 563 (presumption that public officer performed duties re: device permits/certification)
- Gidey v. State, 228 Ga. App. 250 (circumstantial testimony by trained operator can authenticate approved devices)
- Byars v. State, 92 Ga. App. 511 (indictment alleging "in excess of" speed sufficient despite missing exact speed detail)
- Withrow v. State, 275 Ga. App. 110 (continuing course of conduct not punishable separately absent legislative intent; merger required)
- Travis v. State, 314 Ga. App. 280 (vacatur and remand when speeding evidence is sole support for overlapping offenses)
- Calloway v. State, 191 Ga. App. 383 (presumption that public officer checked calibration of speed device)